Recommendation refused: judge

Retired judge Ted Hughes says he's worried the Manitoba government has decided against creating a child advocate's office able to speak freely about its investigations. Photo Store

The retired judge who probed the death of Phoenix Sinclair says child-death reviews ought to be made public and worries the province may never act on one of his biggest recommendations -- the creation of a powerful new child-welfare watchdog.

In the wake of another toddler's death in Manitoba earlier this month, Ted Hughes renewed his call for the creation of a child advocate's office that's truly independent of government and able to speak more freely about its investigations.

The children's advocate

What it is

THE Office of the Children's Advocate was created in 1993 to represent the rights and interests of children in the child-welfare system. The office does three key things. It investigates complaints that children aren't getting proper child-welfare services. It conducts a review each time a child dies while in foster care or while receiving services within the last year. And it advises the minister of family services, often by preparing special reports on broad topics such as the state of youth-emergency shelters.

For the last three years, the children's advocate has been Darlene MacDonald, who was recently reappointed to another three-year term ending in 2017.

The children's advocate is a creature of the massive Child and Family Services Act. Unlike the ombudsman or the auditor general, the children's advocate does not have their own legislation. And, they can only work on issues related to child welfare.

What it could be

In his report, retired judge Ted Hughes called for a truly independent child advocate's office, similar to British Columbia's representative for children and youth. That would give Manitoba's child advocate her own legislation and end her role as a mere adviser to the minister. And it would expand the advocate's mandate beyond just child welfare. The new representative would be able to review any cases where children get hurt or die in the correction system, while getting health care or in school, for example. Hughes also asked that those death and injury reviews be made public, which they are not now.

Why it matters

Manitoba's child-welfare system is remarkably complicated, and was made even more so about a decade ago when control over aboriginal child-welfare files was parcelled out to aboriginal-run agencies. There are 23 agencies in all, four authorities and front-line offices scattered over dozens of locations. Amid the confusion and bureaucracy, the children's advocate is meant to be a voice for kids, not beholden to government and able to cast a critical eye on the system and its services. In the years following Phoenix Sinclair's death, then-children's advocate Billie Schibler issued several influential reports on the state of the system. But most of the child advocate's work is done behind the closed doors of government because its most revealing reports, the child-death reviews, are kept strictly secret.

Speaking from his home in Victoria, the former Court of Queen's Bench justice said he's worried Manitoba's NDP government effectively kiboshed the creation of such an office when it renewed the three-year term of the current children's advocate, Darlene MacDonald, in April.

"It would appear the government has not accepted that recommendation, to institute the office of a representative," said Hughes. "I'm surprised that step was taken."

Hughes said that is the government's choice and he is obliged to respect it.

'It would appear the government has not accepted that recommendation, to institute the office of a representative. I'm surprised that step was taken'

In his three-volume report, issued in January following 91 days of inquiry testimony, Hughes called for the creation of a child-welfare watchdog similar to British Columbia's representative for children and youth.

Since MacDonald's term as child advocate was nearly up, Hughes also recommended an acting advocate be named while the province passed the proper legislation and set up the new representative's office.

But with the support of the Progressive Conservative Opposition, MacDonald's term as children's advocate was renewed for three years in April.

The NDP said Monday the team tasked with reviewing and implementing the bulk of Hughes' recommendations will be reporting to Family Services Minister Kerri Irvin-Ross by the end of September.

"Once the implementation team comes back with suggestions on how to move forward, we can make changes to the (children's advocate's) office prior to the end of the three-year contract," said a provincial government spokeswoman.

All parties must agree on the appointment of officers of the legislature. Progressive Conservative MLA Kelvin Goertzen said MacDonald's reappointment in no way precludes the creation of a stronger office, something the Tories support.

He said it would have been difficult finding a good candidate to serve as acting advocate for six months or a year, and declining to renew MacDonald's term would leave the province without a strong voice for children.

"That would have been the worst of all scenarios," said Goertzen.

He said progress on the new office appears to be stalled, but even if legislation is proposed and passed in the next session, it will likely take a couple of years to set the new office up and hire a representative. That transition time is another reason extending MacDonald's term made sense, said Goertzen.

Debate over the state of child welfare was reignited last week when a toddler died who had been under the supervision of child-welfare workers. Kierra Elektra Star Williams died July 17 at Peguis First Nation. RCMP consider her death a homicide but no charges have been laid.

Virtually nothing is known about Kierra's death or whether the child-welfare system failed her as it failed five-year-old Phoenix several years ago, a case that prompted across-the-board reforms.

The children's advocate will conduct one of the key reviews of Kierra's death. But because of sweeping confidentiality laws designed to protect the privacy of families and siblings, the review will never be made public.

In his report, Hughes recommended all child-death reviews be made public. On Monday, he said he'd hoped legislation allowing for that might be ready this fall. That appears unlikely.

"The purpose is to prevent that kind of thing in the future," said Hughes. "If it's made known what the circumstances were, I think you're going to find a concerted effort not to let it happen again."

In the last three years alone, 34 children in Manitoba have been the victims of suicide or homicide while receiving child-welfare services.

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